Tuesday, January 6, 2009

With the end of the 110th Congress, all the formal legislative activity that was done regarding Orphan Works is now dead, and a new bill, with new hearings, and new negotiations, with new players, must begin anew. Yes, you can expect the language in the bills on both the House and Senate sides of the process to be the basis for the new legislation, but both have far more pressing issues to contend with.

Every cabinet official and other congressionally confirmed administrative official must make it through the Senate Judiciary Committee, then, all of the appointed judges that were delayed in anticipation of a democratic President must go through the process, so you can expect a very busy Senate schedule as eight years of delayed and lost efforts begin anew for the Democratic Party.

What of the House?

(Continued after the Jump)

In the past session, the Subcommittee on Courts, the Internet, and Intellectual Property, headed up by Chairman Berman of California, handled Orphan Works. It was thought by some that Virginia Congressman Rick Boucher would take over the Chairmanship of the Committee, and by others, that it would be Congressman Jerrold Nadler of New York. Instead, the Chaiman, John Conyers, of Michigan, has done away with that subcommittee, and it has been decided that all intellectual property issues will be heard before the full committee, according to a conversation I had today with a Committee staffer, and which was reported by the Washington Post - House Judiciary Chair Conyers Takes Control Of Intellectual Property Issues, 11/13/08.

This means that the issue of Orphan Works must now be fit into the very very busy schedule of the House Judiciary Committee, (including a continued look into the mortgage banking crisis) and all of the needs and wants of those members, as well as the procedural work of all of the other committees. According to GovTrack, "John Conyers has sponsored 191 bills since Jan 5, 1993. of which 159 haven't made it out of committee and 9 were successfully enacted."

The Washington Post article, in discerning how this will affect the owners of intellectual property rights, notes " this one is seen as a win for Hollywood over the consumer electronics industry given that Rep. Rick Boucher (D-Va) is perceived as an ally of the latter and might be more sympathetic towards fair use arguments."

So, what's good for protecting the IP of Hollywood suggests a similar slant towards the IP of the music industry and, yes, that of creatives.

"The House Judiciary Committee has unanimously approved the Pro-IP Act, a legislative proposal which aims to impose stronger penalties for copyright infringement. The approval is no surprise, since the bill's chief sponsor is committee chairman Rep. John Conyers."

Further, it was Conyers' bill that created the new position of Copyright Czar (New Intellectual Property Czar Authorized, 10/13/08), and the Pro-IP Act was signed into law on 10/13 by President Bush. The Michigan Telecommunications and Technology Law Review has an interesting series of insights into how this law changes things in a big way - The PRO-IP Act, 11/10/08.

It was believed that the Pro-IP Act and the Orphan Works Act were to be somewhat of a pair of dove-tailed acts cum laws, enhancing significantly IP rights and enforcement options, while freeing up orphaned works in other areas, and that there was a form of a quid-pro-quo amongst the players. The fact that the Pro-IP Act passed, while the Orphan Works Act died in the House, while the House squashed the IP sub-committee that created the Orphan Works House Bill does not sit well with the pro-OW crowd. You can bet that those who were pushing for the OW bill and accepted the Pro-IP bill as a quid-pro quo but who ended up with nothing are none-too-happy about losing the OW battle, and I suspect some feel tricked into allowing the Pro-IP to pass and then not getting their OW bill, so they feel betrayed and will be loaded for bear in the new Congress.

So, a Pro-IP Chairman will be the gate-keeper of Orphan Works in the 111th Congress - certainly much more Pro-IP than Rep. Berman, who was the Orphan Works champion on the committee in the 110th. Things are looking better, but don't count your chickens just yet.

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